IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090009432 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests approval of his Traumatic Servicemembers' Group Life Insurance (TSGLI) claim for quadriplegia.

2.  The applicant states that his claim for quadriplegia was not approved and that he believes his claim should have been determined to be positive.  He states that his accident happened when he was carrying a wounded Soldier over his shoulders at the Forward Operating Base (FOB), Fort Gordon, GA, when he fell and badly injured his spinal cord.

3.  The applicant provides a copy of a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 March 2008; and a memorandum from the Director of Human Resources/Adjutant General, U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Gordon, dated 3 April 2008, showing that his Line of Duty Investigation was approved.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was a member of the U.S. Army Reserve (USAR) when he entered active duty on 18 July 2007, in San Juan, Puerto Rico, for training in military occupational specialty (MOS) 25B (information technology specialist), in the rank/grade of specialist (SPC)/E-4.

2.  A DA Form 2173 shows that on 22 October 2007, while he was on active duty for training, the applicant was examined by a patient administrator and diagnosed 
with intervertebral disc degeneration - lumbar cervical myelopathy C4-5, C5-6, cervical radiculopathy, mild cervical degeneration.  According to the statement, the applicant was participating in training at the FOB on or about 7 October 2007 when he carried a "wounded' casualty over his shoulder.  Carrying the casualty for a brief period of time caused the applicant to feel a burning sensation from the back of his head to the base of his spine.  The DA Form 2173 shows that his injury was considered to have been incurred in the line of duty.

3.  In a memorandum dated 3 April 2008, the Department of the Army, United States Army Installation Management Command, Director of Human Resources/Adjutant General notified the Commander, United States Army Human Resources Command, St. Louis, MO, that the Line of Duty Investigation pertaining to the applicant was approved.

4.  On 10 June 2008, a Physical Evaluation Board (PEB) convened to determine the applicant's fitness for retention in the Army.  The PEB's diagnosis was right (dominant) upper extremity weakness from cervical myelopathy; C4-C7 fusion for cervical myelopathy, disc herniation and degenerative disc disease; left (non-dominant) upper extremity weakness; and lumbar disc herniation without motor neurologic deficits.  The PEB recommended permanent retirement based on the length of time his conditions had most likely been present.  The PEB found that the applicant's medical and physical impairment prevented him from reasonable performance of the duties required by his grade and MOS.  The PEB further found that there was sufficient evidence to support a finding that the applicant's impairments existed prior to service, it was subsequently aggravated by such service, and it rendered him unfit.  The PEB recommended the applicant be permanently retired by reason of physical disability with a combined service connected disability rating of 70 percent.

5.  On 11 June 2008, the applicant concurred with the findings and recommendation of the PEB and he waived a formal hearing of his case.

6.  On 7 July 2008, the applicant was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4.24b(1) by reason of permanent physical disability.  He had completed 11 months and 20 days of net active service this period.

7.  The applicant's TSGLI claim and request for reconsideration are not available for review by the Board.  However, information obtained from the United States Army Human Resources Command, Alexandria, VA, reveals that on 8 December 2008, the applicant filed a claim for TSGLI benefits and that his claim was denied due to insufficient medical documentation.  He filed a request for reconsideration 
of his claim for TSGLI on 19 February 2009 and his certifying clinician stated that he had an "ASIA D Tetraplegia" that could impair his activities of daily living (ADLs); however, his claim was denied due to his doctor's failure to certify ADL loss.

8.  Public Law 109-13 (The Emergency Supplemental Appropriations Act, for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on May 11, 2005, established the TSGLI program.  U.S. Army Combat-Related Special Compensation (CRSC) has been designated as the lead agent for implementing the Army TSGLI program.  The TSGLI program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury.  TSGLI provides between $25,000 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense.  As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage.  Any Soldier who elected SGLI coverage automatically receives TSGLI coverage with an additional $1 taken out each month to cover the cost of the TSGLI policy.  Soldiers paying for SGLI coverage cannot decline TSGLI--it is a package.  In addition, there is a retroactive program, in which Soldiers who incurred a qualifying traumatic injury from 7 October 2001 through 30 November 2005, while supporting OIF and OEF or under orders in a Combat Zone Tax Exclusion (CZTE) area are covered regardless of whether they elected SGLI coverage or not.  Soldiers who elect SGLI coverage and incur a qualifying traumatic injury after 1 December 2005 (with the exception of some specific circumstances under which a traumatic injury will not be covered), regardless of their component (Active, Reserve, or National Guard) or the location in which they incurred the injury will be covered by TSGLI. 

9.  There are some specific circumstances under which a traumatic injury will not be covered by TSGLI.  A qualifying traumatic injury is an injury or loss caused by application of external force or violence (a traumatic event) or a condition whose cause can be directly linked to a traumatic event.  Traumatic injuries covered may include, but are not limited to the following types of losses:

	a.  total and permanent loss of sight in one or both eyes;

	b.  loss of hand or foot by severance at or above the wrist or ankle;

	c.  total and permanent loss of hearing in one or both ears;

	d.  loss of speech;


	e.  loss of thumb and index finger of the same hand by severance at or above the metacarpophalandeal joints;

	f.  quadriplegia, paraplegia or hemiplegic;

	g.  3rd degree or worse burns covering 30 percent of body or 30 percent 
of the face;

	h.  coma or traumatic brain injury; or

	i.  other traumatic injuries resulting in the inability to carry out two of the six ADLs, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADLs if the claimant is completely dependent on someone else to perform 2 of the 6 ADLs for 30 days or more    (15 days or more in the case of traumatic brain injuries).  ADL loss must be certified by a healthcare provider in Part B of the claim form, and ADL loss must be substantiated by appropriate documentation such as Occupational/Physical Therapy Reports, Patient Discharge Summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss.  While TSGLI claims won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.  

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his claim for TSGLI for quadriplegia should be approved.

2.  His contentions have been noted.  However, he has not provided sufficient documentation to support his contention that TSGLI was improperly denied.  According to the available information, the applicant's TSGLI claim was denied due to insufficient medical documentation and his request for reconsideration was denied due to his doctor's failure to certify his ADL loss.

3.  The applicant's application to this Board does not include documentation from his doctor certifying an ADL loss and the available medical records do not support his claim for quadriplegia.
4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090009432



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ABCMR Record of Proceedings (cont)                                         AR20090009432



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